Unlawful mental health detention – who is to blame?

20 January 2011 by Maria Roche

TTM (By his Litigation Friend TM) v London Borough of Hackney, East London NHS Foundation Trust; Secretary of State for Health –  Read judgment

The Court of Appeal has ruled that the local authority, but not the detaining hospital, was liable to pay compensation to a person who had been unlawfully detained under Section 3 of the Mental Health Act  1983.  The case provides important guidance on the liability of mental health and medical professionals in the difficult area of detaining patients, as well as the ability to recover damages where a claimant is unlawfully detained.

The Court held that the patient’s detention had been unlawful from the start when the approved mental health professional [‘AMHP’] erred in whether the patient’s relative objected to admission.  The local authority responsible for the AMHP could not rely on the Section 139(1)of the Mental Health Act 1983 [‘the Act’] statutory protection from civil liability, which had to be read down by virtue of Section 3 of the Human Rights Act 1998 to give effect to the patient’s right to liberty under Article 5 of the ECHR.

The hospital had acted lawfully in detaining TTM, however, as it had the power under Section 6(3) of the Act to detain a patient on the basis of a Section 3 application that appeared to be duly made.   The NHS Hospital Trust was represented Neil Garnham QC and Sydney Chawatama of these Chambers.

The Court further ruled that in the circumstances there had been no breach of Section 12 (2) of the Act when neither of the required two medical practitioners recommending admission had previous acquaintance with the patient.

Background Facts

In December 2008 TTM had been lawfully admitted under Section 3 of the Act to Homerton Hospital, run by the Respondent NHS Foundation Trust.  Subsequently, TTM’s nearest relative TM exercised his power under Section 23 of the Act to give notice to require TTM’s release by 22 January 2009.

When the notice to discharge was served, the Hospital’s intention had been to bar the notice under Section 25 but the relevant medical practitioner did not serve the report stating that TTM would be likely to act in a manner dangerous to other persons or to himself within the requisite 72 hours after notice.  The treating medical practitioner then temporarily detained TTM under Section 5(2) but his colleague disagreed whether sectioning was required.

On his subsequent release from formal detention,  it was agreed that TTM should remain informally in hospital.

Whilst voluntarily remaining in hospital, TTM refused to take any medication and his treating clinicians also differed on whether medication was necessary.  Consequently, two independent psychiatrists assessed TTM and recommended admission under Section 3 of the Act for the safety of TTM and others.

On 30 January 2009 the AMHP made a written application for admission on the basis of the psychiatrists’ opinion. Under Section 11(3) of the Act such an application requires consultation with the nearest relative.  A more complicated application procedure would be required if the nearest relative, TM, were to object to the application.

The AMHP spoke with TM three times before making the application.  Initially, it was clear that TM objected to TTM’s admission but by the third call the AMHP honestly but mistakenly concluded TM no longer objected.    By the time TM rang to clarify his objections the application was already made, TM could not longer prevent admission and his power to discharge TTM was restricted by Section 25 of the Act.

TTM applied for a writ of habeas corpus.

Grant of Habeas Corpus

On 11 February 2009 Mr Justice Burton granted TTM’s application for a writ of habeas corpus on the grounds that the AMHP did not act reasonably in concluding that there was no objection from the nearest relative, TM.  Mr Justice Burton held that nothing had occurred that should have led to the conclusion that TM had changed his mind:

I am satisfied that … without any criticism of mala fides on the part of [the AMHP] … this Section 3 admission was unlawful because, although [the AMHP] genuinely believed that there had been a change of mind by the nearest relative, it was not reasonable of her so to have believed … ” [48]

Judical Review Proceedings

On the first day of the habeas corpus hearing, TTM also issued a claim by way of judicial review for (a) a declaration that his admission under Section 3 was unlawful, (b) damages under Article 5(5) and 8 of the ECHR (c) leave under Section 139(2) to pursue a damages claim against the local authority, and/or (d) if his claim was barred by the Act – a declaration that Sections 139(1) and 6(3) of the Act were incompatible with Article 5 of the ECHR.

At first instance, Mr Justice Collins dismissed TTM’s claim holding that his detention had not been unlawful until such time as the court declared the decision-making process to have been defective – applying R v Managers of South Western Hospital ex p M [1993] QB 683 and R v Central London County Court ex p London [1999] QB 1260 and distinguishing Re S-C (Mental Patient Habeas Corpus) [1996] QB 599 as it was not directly concerned with that question.

Further, the Hospital Trust acted lawfully as it was authorised to detain TTM under Section 6(3)  – it was entitled to rely on the AMHP’s application without further enquiry as to the objections of the nearest relative.

In the circumstances there had been no breach of Section 12 (2) when the psychiatrists assessing TTM for admission had no acquaintance with him. The section requires that:

one shall be given by a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder; and unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a registered medical practitioner who has such previous acquaintance” [emphasis added]

“Practicable” must be interpreted in its context and should not be equated with “possible”.  Given the division of medical opinion in the treating clinicians, it was both reasonable and a proper exercise of judgment as to what was in TTM’s best interests to use medical practitioners who came to TTM’s case afresh.

Mr Justice Collins declined leave under Section 139 (2) as compensation could only follow if there had been negligence or bad faith.  Bad faith was not alleged and on the facts found by Mr Justice Burton, Mr Justice Collins found there was no reasonable prospect of success of the claimant proving negligence.

The judge held that there was no breach of Article 5 of the ECHR where detention was lawful in domestic law and consequently no claim for compensation under Article 5.  In the circumstances there was no incompatibility in either Section 139 or Section 6 (3).

The Appeal

Permission to appeal was granted by Mr Justice Collins in respect of whether:

(1) detention was unlawful ab initio such that compensation was payable under Article 5(5); and

(2) in the circumstances there had been a breach of Section 12(2) of the Mental Health Act.

Unlawful Detention

The Court of Appeal held that the Hospital Trust acted lawfully by virtue of section 6(3) which effectivley empowers hospital managers to admit a patient where his admission appears to have been duly made.  Whether this amounted to a power to detain or a defence against any claim for unlawful detention was described as the “opposite sides of the same coin” [38].

The Court rejected, however, the Respondent Local Authority’s and the Health Secretary’s argument that as the Hospital Trust had detained TTM lawfully he was not unlawfully deprived of his liberty by the conduct of the AMHP. Applying Davidson v Chief Constable of North Wales [1994] 2 All ER 597, the fact that the hospital trust’s actions were lawful were not curative of the underlying unlawfulness:

There may be false imprisonment by A although it was B who took the person into custody and B acted lawfully, provided that A directly caused B’s act and that A’s act was done without lawful justification’ [35]

A lawful act by a second act does not prevent the claimant’s detention being a direct consequence of the AMPH’s unlawful act, nor cannot it cure the unlawful nature of the act:

Lawfulness or unlawfulness is an attribute of the conduct of the defendant which caused the claimant’s loss of liberty” [36]

so the fact that the Hospital Trust acted lawfully:

did not clothe the conduct of the AMHP with lawfulness” [54]

The Court considered that the decision in ex p M had been overruled by the Court of Appeal in S-C and applied Sir Thomas Bingham’s reasoning in that case that there was nothing that would enable “a fundamentally defective application to be retrospectively validated”. Section 6(3) simply means the claimant cannot complain of unlawful detention against the hospital managers – it cannot make an unlawful detention lawful.

The Court was unpersuaded by the Local Authority’s argument that because the Hospital Trust was entitled to act as if the AMHP’s application was lawful it followed that TTM’s detention did not contravene his Convention rights and the AMHP had not acted incompatibly with that right.  Such an argument was:

a back to front argument, reminiscent of the world of Alice Through The Looking-glass where things are seen back to front….” [62]

The Court concluded:

it cannot be right, because of the division of responsibility to regard the resulting state detention as consistent with Article 5 when the fundamental cause of the detention was an application made in contravention of the Act” [64]

Consequently, TTM had been unlawfully detained contrary to Article 5 of the ECHR and entitled to compensation.

In regard to the mechanism of achieving compensation, the Court held that the function of  Section 139(1)  to limit the civil liability of the responsible local authority to cases where the act was done in bad faith or without reasonable care could be read down by virtue of Section 3 of the Human Rights Act so as to permit a compensation claim.

In contrast, the Court rejected the submission that Section 6(3) should also be read down as:

S6(3) serves a positive purpose… I accept … that it would be undesirable to weaken s6(3). It is in the public interest that a hospital trust should act promptly on receipt of an application for admission which appears to be in proper form…” [68]

Consequently, TTM had been unlawfully detained as matter of domestic law and under Article 5 and TTM was given leave to pursue compensation against the Local Authority but could not recover against the Hospital Trust.

Section 12(2) of the Act

The Court dismissed the Appellant’s second point of appeal that the Section 3 application had been invalidated as neither medical practitioner had had an acquaintance with TTM when it was “practicable” that a known practitioner advised as required by Section 12(2) of the Act.

.   The Court did not wish to define “practicable” but concluded:

… Parliament must have foreseen that decisions.. under S3 may  be in circumstances of urgency.  And it must have intended that the professionals involved in the process would discharge their responsibilities in a professional way with proper regard for the interests of the patient and of society.  The word “practicable” must have sufficient elasticity to accommodate these considerations” [81].

The court concluded that in the circumstances of the case “it was not unduly stretching the language of Section 12(2)” to conclude that it was not practicable for the application to have been founded on a written recommendation of a medical practitioner who knew TTM.

Lord Justice Toulson further commented [obiter] that:

… I should be surprised if the application had been invalid merely because it was not supported by … a clinician who had previous acquaintance with TTM when his responsible clinician had expressed .. that TTM’s admission was necessary” [95]

Conclusion

This decision substantially expands the liability of local authorities for unlawful detention of mental health patients beyond the previous statutory limits.   A Claimant will no longer have to show that an AMHP has acted in bad faith or without reasonable care to establish a claim in damages for unlawful detention under Article 5 of the ECHR. This will undoubtedly have consequences for local authorities making Section 3 applications, particularly in regards to the procedures and safeguards in place.

The decision is reassuring, however, for hospital authorities.  Hospital authorities will undoubtedly be relieved by the  Court’s acceptance that there are good public interest reasons why a hospital should not have to look behind a prima facie legitimate Section 3 application.  The flexibility to deploy medical practitioners to assess a patient afresh when the clinical circumstances, including differing clinical judgments, require it in the patient’s interest will also be welcome in this difficult area.

Neil Garnham QC and Sydney Chawatama of 1 Crown Office Row appeared for East London NHS Foundation Trust in this case

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